Test For Thomas: Natural Law

RIGHTS - MAN-MADE OR GOD-GIVEN?

Supreme Court Nominee Clarence Thomas' Views On Natural Law - And How It Relates To Abortion Rights - Will Be Central Issues At His Confirmation Hearing This Week.

September 8, 1991|By J. Craig Crawford Of The Sentinel Staff

WASHINGTON — Where does law come from, heaven or earth?

It's an age-old question that fires up philosophers and legal scholars, and one that promises to result in plenty of arguments this week when confirmation hearings begin for Supreme Court nominee Clarence Thomas.

Several Senate Judiciary Committee members, including chairman Joe Biden, D-Del., have vowed to grill Thomas on the controversial legal philosophy known as natural law. And his answers are expected to affect some votes.

Natural law - also known as ''higher law'' - is an idea, going back to ancient times and espoused by the framers of the U.S. Constitution, asserting that all humans are endowed by God with certain rights no government can deny. Such thinking differs from the mainstream of contemporary legal theory - that law is a human creation, a set of rules that balance competing interests.

Critics of natural law say it is an excuse to embed religious values in the legal system.

''The idea of a natural law that supersedes human law is not a judicial concept, but is fundamentally a theological concept,'' said Danny Goldberg, chairman of the American Civil Liberties Union chapter in Southern California.

Natural-law advocates say they are trying to reform a legal system that has lost its moral underpinning.

''The existence of (natural-law) values means that it is morally wrong to treat people unequally or to violate their liberty,'' said Michael Moore, a University of Pennsylvania law professor who wrote a leading textbook on the issue, A Natural Law Theory of Interpretation.

Thomas' opponents say that his belief in natural law proves the Supreme Court nominee opposes abortion rights, and they use as evidence Thomas' praise of an article that cited the natural-law rights of a fetus as an argument to prevent abortions.

''We are convinced that he could be the most extreme anti-privacy, anti-choice vote on the court,'' said Loretta Ucelli, communications director for the National Abortion Rights Action League.

John Danforth, R-Mo., said in a recent Senate floor speech that he asked Thomas ''whether he intended to apply natural-law theory to abortion . . . and his answer was absolutely not.''

Thomas himself has never publicly referred to natural law as a reason to outlaw abortions.

''Natural-rights and higher-law arguments are the best defense of liberty and of limited government,'' Thomas said in a 1988 speech, his most explicit statement on the subject.

To most Americans, talk of natural rights and higher law might sound tame and somewhat familiar. Most of the nation's founders believed in it.

The concept is as American as the Declaration of Independence, which asserted that all persons are ''endowed by their creator'' with certain ''inalienable rights'' such as ''life, liberty and the pursuit of happiness.''

Yet Thomas' liberal critics insist that his espousal of natural law is far from innocuous, that it could lead him to support overruling Roe vs. Wade, the 1973 decision that made abortion a constitutional right.

Thomas' defenders counter that he has invoked natural-law theory primarily in talking about racial equality. That's how Thomas put it when questioned recently by a liberal senator who sits on the Judiciary Committee.

Howard Metzenbaum, D-Ohio, asked Thomas to spell out his views on natural law when the nominee made a July visit to the senator's Capitol Hill office.

''Well, senator,'' Thomas asked, according to Metzenbaum, ''do you think it's proper for a human being to own another human being?''

Metzenbaum said no.

''The reason you think that's wrong is because we all have natural rights,'' Thomas told the senator.

Metzenbaum then asked whether human beings had a natural right to own animals. Thomas said he would have to check the literature on natural law for an answer.

Even among its adherents there is profound disagreement about interpretation. While some cite natural law to oppose abortions, others say it protects abortions because the natural rights of the mother supersede those of the fetus.

The abortion debate highlights a main criticism of natural-law theory: that it can be used on either side of an argument. Abraham Lincoln cited natural law in opposing slavery, while others argued that whites had a natural, God-given right to own blacks.

Perhaps the only certainty in today's natural-law debate is that no Supreme Court justice has openly espoused the concept in opinions for more than 50 years. And the last time the court based a ruling on natural law, it denied women the right to be lawyers.

In that 1873 decision, Justice Joseph Bradley wrote: ''The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.''